John Yoo on Religion and Judicial Decisionmaking in Gonzales v. Carhart:

Yoo criticizes Geof Stone's religion-based criticisms of the majority Justices' decisionmaking.

Related Posts (on one page):

  1. John Yoo on Religion and Judicial Decisionmaking in Gonzales v. Carhart:
  2. Rick Garnett on Catholic Justices:
Bored Lawyer:
The notion that the decision was a "Catholic" one is rendered absurd when one considers the fact that the PBA Ban was passed by very wide margins in Congress and enjoys support of a large majority of Americans -- most of whom are not Catholic.

If a large majority of populace finds a practice morally abhorrent, then one needs a powerful Constitutional authority to overturn that majority will. This is what is lacking in the criticism of the majority opinion.
4.30.2007 3:38pm
Jacob (mail):
Actually he criticizes "the know-nothing left," "liberals," "many liberals," "pro-choice liberals," Rosie O'Donnell, and a pro-choice coalition of religious leaders, along with Prof. Stone. He also seems to believe all of these are members in the "Liberal critics" coalition, a group which drools in disbelief at the morality of a majority of Americans, and which all have the same exact views on the reasoning of Roe and the Supreme Court's role in government. Because anyone who falls into one of those groups shares the same opinions as the first person to say something John Yoo doesn't like.
4.30.2007 3:49pm
Bored Lawyer:
Jacob: I was addressing myself to Stone's criticisms, not Yoo's, which I agree are more political than substantive.
4.30.2007 3:54pm
James Dillon (mail):
It's unfortunate, to say the least, that the reaction of the mainstream left to the Carhart opinion has forced me into a position of agreeing wholeheartedly with John Yoo. The Catholic angle to this is a silly ad hominem that has no place in mature conversation about this case. It seems that many on the pro-choice left (of which I count myself a member, despite my desire to distance myself from some of its public arguments right now) would rather play simple-minded identity politics than concede the fact that, even under Roe, the government has a legitimate interest in regulating the practice of abortion to some extent.

In defense of Professor Yoo, he quotes Stone and O'Donnell as stating explicitly that the Carhart opinion was motivated by some religious compulsion that violates the First Amendment, and I think it's fair to say that "many" liberal critics agree with that sentiment. I've certainly heard it repeated frequently since Carhart was issued.
4.30.2007 3:57pm
Hans Bader (mail):
My understanding is that other countries (including countries with fewer Catholics than the U.S., or lower church attendance than the U.S.), tend to ban far more late-term abortions than the U.S. does, not just partial-birth abortion.

For example, the British Abortion Act bans third-trimester abortions generally. There aren't very many Catholics in Britain.

Proudly secular France restricts abortion after the first trimester.

Germany's courts stepped in and required regulation of abortion based on fetal rights when the government sought to loosen abortion law.

American law is fairly unusual in permitting late-term abortions based not on the mother's physical health needs, but merely based on an abortion provider's claim that the abortion will prevent risks to the purported "emotional" or "psychological" health of the mother.

Professor Stone is very parochial for not taking into account the fact that even heavily Protestant or non-religious countries restrict late-term abortions, and instead making the silly claim that the Supreme Court upheld the ban on partial-birth abortions just because there were Catholic justices on the Supreme Court.

His comment was worthy of the nativist Know Nothings of the mid-19th Century.

(By the way, I should not have to point this out, but I am not Catholic, and am not very religious).
4.30.2007 4:03pm
Jacob (mail):
Bored: And I wasn't addressing anyone in particular (I hadn't read your post yet), but merely adding details to Prof. Volokh's comment on the column.

This "Catholic Justices" thing is the meme of the week. Eight or so Op-Ed writers probably cribbed it from each other or a blog somewhere, and now there's this feedback loop and snowball effect and a number of other metaphors going on. If I sat down and read every single liberal blog, maybe I could tell that it was growing. Even then, I think I would probably conclude it was the desperate stockpiling of ammunition against a decision they didn't like in the first place, and not some actual belief held by this large segment of the country. If John Yoo wants to get into a flame war with a law professor and a talk-show host, that's fine. But he invented a monolithic group and decided they were represented by those two, assigning everyone within not only the latest Stone/O'Donnell thesis but also every position he dislikes on the abortion debate. That's something out of the political hack playbook.
4.30.2007 4:26pm
Kovarsky (mail):
What if the president needed to conduct an intact D&E to thwart a terrorist plot to blow up New York?
4.30.2007 5:16pm
Gabriel Malor (mail):

I think I would probably conclude it was the desperate stockpiling of ammunition against a decision they didn't like in the first place, and not some actual belief held by this large segment of the country.

You mean that we're not allowed to treat them as if they mean what they say? Sheesh.
4.30.2007 5:24pm
Actually, to bring that example completely into line with Yoo's writings, the D&E would have to be performed in order to provide law enforcement with a terrorist's child whose testicles can be crushed.
4.30.2007 5:25pm
It isn't an excuse, but there's a sloppy tendency in this country to use "Catholic" to mean "religious Christian" in this country because there's a visible monolith in the Church with a visible figurehead in the Pope.

It would not be outrageous to suggest that the majority of abortion-related objection in the US is at least partially formed from religious inclination. I think when the "know-nothing left" is saying "Catholic," they are using it as a sloppy shorthand for "the religious."

It's still a weak argument if you make the substitution.
4.30.2007 5:59pm
James Dillon (mail):

I realize that you're not defending that line of argument, but I would point out that, if you read "Catholic" to mean "Christian," the argument becomes even more absurd, since, as Yoo points out, two of the dissenting Justices in Carhart are Protestant Christians.
4.30.2007 6:06pm
Hans Bader - You do realize that France is not only 'proudly secular' but also somehow still very Catholic, right?

With that aside, I really don't understand why so many people are trying to make a big deal out of this. I'm Catholic, and I couldn't care less if Geoffrey Stone wants to say something like that. It just doesn't matter, and though I realize that there was some modest level of discrimination against Catholics in earlier eras of American history, I can't be bothered to worry about that at this point. After all, as Mr. Stone's comments imply, Catholics aren't exactly some kind of powerless minority in the U.S.
4.30.2007 6:39pm
Hans Bader (mail):
No, France isn't very Catholic.

Most French people aren't religious at all. My wife, who is a French citizen, certainly isn't.

Even French "Catholics" often aren't really Catholic. It's a cultural rather than a religious designation for them.

My wife describes her father as "Catholic," but when she says that it, it merely means that her father -- a Trotskyite atheist trade unionist -- is descended from Catholics (from France and Spain).

By contrast, she describes her unobservant mother as "Jewish" because she has Sephardic Jewish ancestors.

These are cultural, not religious designations.

My wife's "Catholic" father won't set foot in a church.
4.30.2007 6:58pm
loki13 (mail):

I think Prof. Stone is wrong about this topic.


I think John Yoo is wrong about everything.

So, hmm..... immovable argument, unstoppably annoying legal opinions....
I'm going to sleep.
4.30.2007 11:42pm